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nixy wrote:I agree that it's not ideal for a clerk to give birth during a one-year term, but I also don't know anyone who's actually planned to do that, and sometimes planning doesn't work. Saying "there should be some mechanism for parental leave" does not at all suggest a judge has a right to inquire about an applicant's plans for becoming a parent, because the only reason to know that is for the judge to choose a clerk based on that criterion, and that's just seriously crappy.

Seconding this. I also wonder how the judge's defenders ITT would react if, say, the judge had asked a follow-up question along the lines of, "do you intend to have an abortion in the event of an unplanned pregnancy during your clerkship?" Clearly such a question would be wildly inappropriate. Yet the same argument used to defend the "getting yourself pregnant" question would also seem to support asking the abortion follow-up.

Nixy, it's not about being "on the judge's side." It's just about seeing that clerking is really, really different from pretty much any job out there because of the uniqueness of the institution, the intimacy of chambers, etc. The alternative to having a real mechanism for dealing with it, is what I briefly mentioned before: that there's a tacit or express agreement not to (plan on) having kids in the middle of a clerkship and some judges will ask it about. That's the way it's been for a long time. And it's legal (no lawyer should ever use the expression "technically legal," especially when what you mean is "it's legal but I don't like it"). You may find it outrageous, but that's the reality.

BlackAndOrange84 wrote:Nixy, it's not about being "on the judge's side." It's just about seeing that clerking is really, really different from pretty much any job out there because of the uniqueness of the institution, the intimacy of chambers, etc. The alternative to having a real mechanism for dealing with it, is what I briefly mentioned before: that there's a tacit or express agreement not to (plan on) having kids in the middle of a clerkship and some judges will ask it about. That's the way it's been for a long time. And it's legal (no lawyer should ever use the expression "technically legal," especially when what you mean is "it's legal but I don't like it"). You may find it outrageous, but that's the reality.

I really really don't agree here. Clerking is different from other jobs but it's not special - like I said, women taking maternity leave disrupts LOTS of positions just as much as clerking would, but we don't put up with it the questions being asked in those contexts. Again, I agree that having a kid while clerking isn't ideal, and I don't know anyone who's planned to do it. But the flip side of your argument that it's so disruptive and there's a tacit agreement not do it is, why the need to ask about it? The only people I know who've done it have either had unplanned pregnancies, or been pregnant when they interviewed and brought it up at the time. So what purpose does asking about it serve if it's self-evidently a bad idea?

And yes, it's legal but I don't like it. Does it make you feel better to have me say that expressly? Okay, I did. There are plenty of things that are legal that aren't professional/ethical/etc. (no lawyer should ever need to have that explained to them). I'm not claiming it's not reality, I'm claiming it sucks.

nixy wrote:I really really don't agree here. Clerking is different from other jobs but it's not special - like I said, women taking maternity leave disrupts LOTS of positions just as much as clerking would, but we don't put up with it the questions being asked in those contexts.

Exactly right. The best analogy to chambers is, say, a small, 4-person branch office of a 30-person business. Let's say the business has 26 people at its main office in CA, and 4 at its single branch in TX. The branch office's operations would definitely be disrupted by losing one of its employees to maternity leave, and it would be impracticable for the business to reassign one of its CA employees to TX to cover for the absent employee. Yet no one would argue the TX branch office ought to have a special right to discriminate against women who might become pregnant.

nixy wrote:And yes, it's legal but I don't like it. Does it make you feel better to have me say that expressly? Okay, I did. There are plenty of things that are legal that aren't professional/ethical/etc. (no lawyer should ever need to have that explained to them). I'm not claiming it's not reality, I'm claiming it sucks.

No one ITT has advised OP's friend to bring suit against the judge for violating federal non-discrimination law. The entire debate has revolved around whether the judge's behavior is acceptable.

There's validity to what you're all three saying. Clerking is different than a normal job. For example, a person taking maternity leave in a normal job isn't usually there for a one year term before being replaced by another. The temporary nature of the job makes it a bit different. At the same time, the line of questioning is inappropriate. But I also don't think it's necessarily indicative of the judge being a bad boss.